STORY: Tarred by the test results," by reporter Rachel Mendleson, published by the Toronto Star on October 19, 2017. (Data analysis by Andrew Bailey);
GIST: "We analyzed across the country that involved Motherisk’s flawed hair-testing evidence. In the results were positive for drugs or alcohol. Only presented competing forensic evidence. Until the scandal broke in late 2014, Motherisk’s results were accepted . In an Elliot Lake, Ont., courtroom in 2011, a woman fighting for custody of her step-grandchild tried to convince the judge that Motherisk’s results were bogus. The Children’s Aid Society of Algoma had submitted Motherisk’s tests of the woman’s hair, which were positive for cocaine and opioids, as proof she had recently used drugs. The woman, identified by the court as L.G., argued the lab must have miscalculated because she had been clean for several months. The judge was not swayed. “Ms. L.G.’s explanation for the hair follicle testing and the results of those tests is, in part, to challenge the very science of that hair testing,” the judge wrote in his decision. “Hair follicle testing occurs with regular frequency in the Province of Ontario and is relied upon by this court and other courts throughout the province. There is no evidence before this court . . . that would effectively challenge that science.” The case is one of 50 child protection proceedings involving drug and alcohol hair-strand testing that were reviewed in a Star/CBC investigation into the largely hidden corner of the justice system where the Motherisk scandal festered. For more than two decades, in family courts across Canada, judges accepted Motherisk’s faulty evidence, praised the lab’s untrained experts and disbelieved parents who lacked the means to adequately challenge damning results that influenced decisions that tore their families apart. The hair-testing in eight of the cases was conducted at private labs; 42 cases involving 65 children relied in some part on hair tests performed at Motherisk. Ninety-three per cent of those 42 cases included at least one positive result. Although an adult seeking custody denied the positive results in 67 per cent of the cases, only 14 per cent presented competing forensic evidence, such as urine screens or hair tests performed at a private lab. Almost always, judges favoured the hair tests from the Hospital for Sick Children. Motherisk’s results were accepted in all 34 cases that predated the start of Motherisk controversy, in late 2014. Motherisk’s hair tests, which were deemed “inadequate and unreliable” for use in court by a government-commissioned review in December 2015, informed everything from orders mandating the supervision of children by authorities to decisions making children Crown wards without access to their parents. Along the way, positive results eroded the credibility of parents who disagreed with the findings. “One of the difficulties with this kind of evidence is that it has a corrosive effect through the whole case,” said Rollie Thompson, a family law professor at Dalhousie University and former head of Dalhousie Legal Aid, where he represented parents in child protection cases. “It affects judgments that the ministry makes about what cases it goes ahead with and how hard they push them. It affects how much the legal aid lawyer trusts the parents,” he said. “That’s the insidious effect of this stuff.” As the Star has previously reported, Sick Kids missed the warning signs with Motherisk, a national tragedy that has left governments across the country struggling to right wrongs that can’t be undone. This is how Motherisk’s flawed forensics infiltrated the courts. For several years, a woman we’re calling Angela had limited access so her two daughters. partly because a Motherisk test labelled her a chronic drinker. Eventually she presented competing evidence. The Star/CBC review is based primarily on publicly available court decisions that have been sanitized to remove identifying information and posted online. The analysis captures only a sliver of the thousands of child protection cases involving Motherisk because many decisions and final orders in child protection proceedings are not publicly available. But the sampling is a window into the socio-economic challenges facing families who submitted to hair testing in their fight to keep their kids. Ninety per cent of case histories included some mention of at least two of the following: substance abuse; domestic violence; poverty/unemployment; criminal/police involvement; and prior involvement with child protection. Four of those factors were mentioned in 54 per cent of cases. “It’s not like ... we (were) randomly going through Rosedale and pulling people’s hair out” for testing, says Nicholas Bala, a family law expert at Queen’s University, referring to the affluent Toronto neighbourhood. (Bala was consulted in the review of Motherisk by retired judge Susan Lang, who was appointed by Queen’s Park in late 2014 and probed a decade’s worth of the lab’s hair tests.) These disadvantaged parents faced a formidable opponent in Motherisk. Trading on the reputation of Sick Kids, the lab actively marketed its hair tests, offering preferential rates to child protection agencies and holding speaking engagements across the country. Lab manager Joey Gareri also gave presentations to members of the legal community, according to his C.V., obtained by the Star/CBC, which lists a crime conference for Ontario Provincial Police in Orillia in 2007, a “lunch and learn” for family lawyers in Durham in 2011 and a seminar on drug testing at the Ontario Court of Justice in Thunder Bay in 2013. “Child welfare agencies, hospitals and law firms throughout North America rely on Motherisk’s testing expertise, technology and support,” stated a promotional brochure. The brochure, which was distributed to children’s aid societies in Ontario, boasts that Motherisk’s “world renowned team” has “extensive experience as expert witnesses in family and criminal court.”... Phyllis Lovell, executive director at Bruce Grey Child & Family Services in Owen Sound, said Motherisk’s hair tests were seen by children’s aid workers as an objective factor. Unlike urine or blood tests, which can only detect short-term drug and alcohol use, Motherisk’s hair tests held the promise of tracking longer-term consumption. Because hair grows at a rate of roughly one centimetre per month, the lab said its tests could also pinpoint the specific timeframe. (Although some experts argue that the science of drug and alcohol hair testing is valid, Lang found Motherisk’s methods fell far below international forensic standards.) When faced with making tough calls about how to keep children safe, children’s aid workers saw the hair tests as an objective factor, Lovell said. “We thought the science was reliable and we particularly thought that Motherisk, Sick Kids hospital, was an institution, was a service that we could absolutely count on,” she said. “We trusted the hospital and the (lab) and we invited parents to trust us. It turns out that that trust was misplaced.” It is likely no coincidence that the Motherisk controversy was sparked by questions raised in a criminal case as opposed to family court, where risk to children is assessed on the balance of probabilities rather than proof beyond a reasonable doubt. (Criminal proceedings are also much more public.) In family court, Motherisk’s results often went unchallenged, and were almost as likely to be relayed to the court by social workers, as opposed to the lab’s experts, who only testified in 45 per cent of cases. (Forty-three per cent of cases did not include testimony from a Motherisk expert, while the available documents in the remaining 12 per cent did not specify how the lab’s results were presented.) In our review, the Motherisk expert who testified most often was lab manager Joey Gareri, despite the fact that he had no forensic training, as Lang found. Yet Gareri impressed a Superior Court judge in Cobourg in 2008, who praised him for being “competent, professional and understandable.” He also won esteem in the Supreme Court of Nova Scotia in 2014, where the judge found him to be “credible and reliable” and “knowledgeable about the subject matter.” Former Motherisk lab manager Joey Gareri in Toronto. Gareri is a defendant in at least 11 lawsuits related to Motherisk. When interviewed by Lang, Gareri said that he “learned ‘on the job’ on a job that you should not be learning on,” according to her report, but he continued testifying in court, appearing in two child protection proceedings in Sydney, N.S., in January 2015, the Star/CBC found. Gareri, Sick Kids and Motherisk founder and longtime director Dr. Gideon Koren are named as defendants in at least 11 individual lawsuits related to the problems at Motherisk. Citing ongoing litigation, Gareri declined to answer questions for this story, telling a reporter who found him at his Scarborough home: “I’m sorry. It’s got to go through the legal system. I don’t have any comment.” In the face of a positive hair test from Motherisk, judges in several cases remarked that the onus was on the parent to present competing evidence. However, in the vast majority of child protection proceedings, Motherisk’s tests were “effectively impossible to challenge,” says Bala. Those who did succeed in countering the lab’s results did not emerge unscathed. Mental health concerns, questions about parenting ability and unstable housing were among the factors in the case of Angela, an Ontario mother who was labelled a chronic alcohol abuser by Motherisk in 2009, during her battle to regain custody of her two daughters. The results shocked Angela (not her real name) who said in an interview that she was “never a drinker” and “adamantly denied” the findings of several subsequent Motherisk hair tests, which returned the same result. “I always swore when I had my kids that I would be there for everything . . . It almost killed me because there was nothing I could do, and it wasn’t my choice not to be there,” she said. “I just wanted to crawl in a hole and never come out.” Access to her girls, who were 9 and 13 when they were removed, varied as they bounced in and out of care. During the worst of it, Angela’s younger daughter, who we are calling Jenna, estimates she was shuffled among nine placements over the course of a year. “I tried not to unpack my bags if I didn’t have to because a lot of the time when we did move we didn’t have notice that we were moving,” Jenna said. “Because of how often I moved, I didn’t feel like anyone wanted me. I missed feeling wanted.” Their ordeal finally ended three years later, in early 2012, after Angela presented competing evidence — three months of negative results from an ankle bracelet monitor that measures alcohol consumption through the skin, performed during the same 90 days as a Motherisk hair test. In a letter to Angela’s lawyer, Gareri indicated that in this instance, Motherisk had done two types of alcohol hair testing. While the results of the first test, called FAEE, suggested “binge alcohol consumption,” this was ruled out by the second hair test, called EtG, which was negative, as well as the negative ankle monitor results. “In the absence of any reliable additional supportive evidence (e.g. eye-witness accounts, smell of alcohol on breath, etc.); provide no clear reliable evidence of alcohol use during the tested time period,” he wrote. He acknowledged the results of FAEE tests “can be falsely elevated in hair by frequent use of ethanol-containing hair-care products.” Angela suspects this happened in her case. Three days later, the children’s aid society ended its involvement. By the time Angela cleared her name, her oldest daughter had turned 17 and already returned to her mom’s, after she learned she was pregnant while in care. Her youngest daughter, then 13, came home with crippling anxiety. Tannis Toohey for the Toronto Star. By then, Angela’s oldest daughter had turned 17 and already returned to her mom’s, after she learned she was pregnant while in care. Jenna, then 13, came home with crippling anxiety.
If Angela would go to the laundry room to have a cigarette,
Jenna would be on the other side of the door, waiting for her to
finish. When her mom used the bathroom, she would sit on the stairs
nearby. For months, she refused to leave the house. Jenna, whose family is among those who have launched
lawsuits, said: “I fell behind in school and I fell behind socially,
which is why now I have social anxiety and social phobia. I can’t hold a
job in a public place.” Nearly two years after Lang’s report confirmed the
problems at Motherisk, holes in the system remain. The Ontario
government is planning legislation this fall that would require labs
that perform forensic testing to have forensic accreditation to make
sure the evidence meets international standards. But no province
currently has such legislation in place, a national survey of
governments across Canada by the Star/CBC found. Some form of drug or alcohol testing in child protection
continues in at least seven provinces. Hair testing is still used in
Alberta and Manitoba, neither of which relied on Motherisk. In Manitoba,
a spokesperson said drug testing labs “must be certified by the U.S.
Department of Health and Human Services,” but did not clarify whether
they were forensically accredited. A spokesperson for Alberta’s Children’s Services Ministry
said labs that perform the hair tests “adhere to the standards” of the
U.S. Substance Abuse and Mental Health Services Administration (SAMHSA),
and the Department of Transportation, but did not respond to further
questions about whether they have forensic accreditation. Following
inquiries from the Star/CBC, another ministry official, Aaron Manton,
said in an email late Thursday that, “Alberta is planning to phase out
the use of hair testing in child protection cases.” "We will be communicating this to our service delivery regions in the coming weeks," Manton said. In Ontario, the way the child welfare system currently
intersects with the medical system and the courts makes it “complex” for
some agencies to end the practice of drug and alcohol testing,
according to Caroline Newton, spokesperson for the Ontario Association
of Children’s Aid Societies (OACAS). But Newton said the OACAS
recognizes there are “serious concerns” about the reliability of the
testing being done in Ontario labs, and is supporting “all efforts . . .
to end the practice of overreliance on forensic testing.” Lang said she hopes the central message in her report about the dangers of flawed forensics “resonates all over Canada.” “A lot of people did not see family law as forensic work.
They just (thought), ‘Oh if it’s probably so, then fair enough,’” she
said. “Well, that isn’t good enough.”"
The entire story can be found at:
The entire story can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
